Vulnerable Legislation

What is a ‘Vulnerable Roadway User’ Law?

The general idea is to create a subset of road users who are somehow more vulnerable than those inside of enclosed motor vehicle; this usually would include pedestrians and bicyclists, and might include motorcyclists, animal riders, animal drawn conveyances, and so forth. If someone in this subset is harmed by the negligent actions of a motorist, then that motorist is subject to enhanced penalties.

Oregon 2007

Oregon has had a vulnerable road user law since 2007 (effective date Jan 1,2008) — making it the first such law in the US. Bike lawyer Ray Thomas was instrumental in passage. He offers interesting and useful political legislative considerations here. Oregon’s enhance penalties are non-criminal, and involve various trade offs between a fine, license suspension, or community service. The penalty is keyed to the commission of a careless driving offense that results in a serious injury or death.

To see the actual language of the law: look up HB 3314 from the 2007 Regular Session at www.leg.state.or.us. It adds a new section to Oregon’s existing careless driving law, ORS 811.135

What have been the results? It’s way to early to tell anything with crash stats (I originally wrote this article several years ago; perhaps in 2010?) — it ultimately might be impossible to discern. But one does wonder what became of prosecutions under this law?? There were, for example, 104 traffic deaths of bicyclist and ped in 2008 and 2009, the last full year of NHTSA stats available. (51+35 peds, 10+8 cyclists, 2008 and 2009 respectively). And there must have been at least several hundred of serious injuries. What became of these cases? How many vulnerable users’ prosecutions; any license suspensions, etc? I can’t find any outcomes.

As I am updating this now in late 2013, Oregon’s law has been on the books for just shy of six years; I have yet to see more than a tiny handful of mentions of this law (here is one involving a bicyclist hit by a garbage truck; I can’t even find the outcome, the article just says the driver will be charged). There have been now at least many hundreds (more reasonably a couple of thousand — it is some fraction of fatal or seriously injured bicyclist or pedestrian) of potential cases; where are the charges? (that fraction tends to hover around 50%). See this comment below from story published in nextcity in 2014.

Nevada 2011(?)

I can’t find the legislation, but it seems to be from same year as a 3-foot/move over bill was passed. In any event it obviously passed, here from NV’s DMV:

Motorists may be charged with reckless driving if they are at-fault in any collision with a bicyclist or a pedestrian. Penalties include a driver license suspension. (NRS 484B.280)

Washington 2011

Legislative effort in state of WA passed a vulnerable user’s law in the spring 2011 (but doesn’t become effective until June 1, 2012). As of March, a similar bill had passed both houses. See kiptasun article, which also has lots of links. HB1339 passed March 2, 2011; and SB5326 passed the week before. The bill is being pushed by the widow of bicyclist James “Mike” McClurkan. Here is a good graphic representation of “how a bill becomes law” in WA (but is very similar everywhere); Several articles from the Cascade Bicycle Club have lots of rich detail.

The law was signed by the governor May 16, 2011. To see the actual law; follow the link above to the senate bill SB5326, and in there there is a link to Session Laws: Chapter 372, 2011.

The Texas Experience 2005-2009

San Antonio Metro Columnist Veronica Flores writes of political problems with such legislation: “For eight years, bicycling advocates worked to get such legislation passed, changing the proposal as necessary to gain widespread support… In vetoing the bill, Perry cited penalties that he said already exist when a motorist is at fault for causing a collision, “whether it is against a ‘vulnerable user’ or not.”

But here is some more detail on the actual sausage-making process… Saying that the proposal was changed as necessary to gain widespread support is a nice way to put it. NTVC (North Texas Vehicular Cyclist) puts it more bluntly “Bills introduced this session sought to include various pedestrian groups among legitimate road users in an effort to garner support among otherwise indifferent legislators” — in other words, a little horse trading that would, in NTVC’s view, would water-down cyclist’s rights.

New York 2010

New York state recently got two new laws, the first dubbed Hayley and Diego’s Law (A0791) is a vulnerable user’s law. The second, Elle’s law (A10617), stiffens penalties including mandatory license suspension for any motor vehicle driver who KSIs (kills or seriously injures) anyone. More at streetsblog.org.

The LAB weighs in (early 2013 timeframe)

Why I do not support Vulnerable User Legislation

As an aside — I don’t really see it happening in our current political climate.

The foundation for the supposed need seems to be based on a false premise. That being that when cyclists (or peds) are killed, the justice system has some sort of bias that prevents the responsible party from being appropriately punished.

This has not been my experience; at least in the cases of cyclist fatalities. That is to say, a negligent motorist who kills a cyclist is treated the same as a negligent motorist who kills another motorist.

The general rule involves whether or not the negligent driver is impaired: impaired = criminal charges; not impaired means no criminal charges. It is independent of the mode of transportation of the victim.

And in flagrant cases, charges are brought against reckless drivers who cause fatalities. See e.g. the driver who killed Drake Okusako, who was charged with manslaughter. Or the driver who killed Bob Walmsley (neg hom and leaving the scene).

What should be done

I support any sort of stiffening of penalties for negligent drivers who kill / injure anyone. Arizona is one of the few states that does not have a vehicular homicide law (more here), so perhaps that would be helpful. The general idea is that a special/another type of homicide is created; generally with relatively minor criminal penalties. So it would be similar to negligent homicide, a class 4 felony; but with a different standard of conduct. Neg Hom requires the prosecutor to prove the defendant was “criminally negligent”.

More tangibly — Arizona already has a criminal misdemeanor law 28-672. Causing serious physical injury or death by a moving violation. There are only two problems with it, 1) getting (in this case typically city) prosecutors to use it — but that would be the same problem with a new VUL law, and 2) the law itself has a discrete list of infractions. The answer is to simply do away with the list of infractions and make it any moving violation. It would also be good to open up the ranges for the amount of time driver’s licenses get suspended — shamefully, the law has no mandatory minimum suspension period. This law has been tweaked several times in recent past, so there is at least some hope it could be tweaked again.

some context: Bicyclist’s trip represent about 2% of traffic (citation?); In Arizona there were 106,767 crashes between all types of traffic in 2009, of those 1,995 were bicylist crashes, representing 1.95% of all crashes. Source: Motor Vehicle Crash Facts for the state of Arizona (ADOT)

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8 thoughts on “Vulnerable Legislation”

A recent case in San Francisco of a pedestrian fatality with the District Attorney deciding to not press charges against motorist, but also finding the “fault was joint.” Gray areas in determination of what happened in this case.

Maybe this is a better approach to get across the seriousness of the situation:
A newish law that became effective in Illinois in January 2011 stipulates automatic revocation of the driver’s license of anyone convicted of a traffic offense that results in the death of another person. This law was preexisting but the part about any-old traffic violation that causes death triggering the mandatory revocation is new.

I like the “mandatory” part; I would worry about wiggle room in what is a hardship? “I can’t drive my car, boo hoo, this is hard”.

Public Act 096-1305HB4580 Enrolled LRB096 04110 AJT 26824 b
(625 ILCS 5/6-205) (from Ch. 95 1/2, par. 6-205)
Sec. 6-205. Mandatory revocation of license or permit; Hardship cases.
(a) Except as provided in this Section, the Secretary of State shall immediately revoke the license, permit, or driving privileges of any driver upon receiving a report of the
driver’s conviction of any of the following offenses: . . .
16. Any offense against any provision in the Illinois Vehicle Code, or any local ordinance, regulating the movement of traffic, when that offense was the proximate cause of the death of any person. Any person whose driving privileges have been revoked pursuant to this paragraph may seek to have the revocation terminated or to have the length of revocation reduced, by requesting an administrative hearing with the Secretary of State prior to the projected driver’s license application eligibility date.

Thanks to your great work, we won! House Bill 363 – the Manslaughter by Vehicle – Criminal Negligence bill was signed into law on 5-10-11 by Governor O’Malley.

Bike Maryland gives thanks to the many dedicated and the advocates that worked together to bring this legislation to fruition. HB 363 increases justice and safety for all vulnerable groups, including bicyclists and pedestrians, by sending a clear message to motorists to obey the law – now just punishment exists. There have been far too many bicycle and pedestrian fatalities, caused by motorists, on Maryland roads. HB363 fills an important loophole in the law and prosecutors will now be able to seek higher penalties for those who cause the fatality of a bicyclist. The bill will become law on October 1, 2011!

Bike Maryland’s Top Legislative Priority

Bike Maryland’s #1 legislative priority is to increase penalties for drivers who cause fatalities when sober because they are driving in a negligent manner, flagrantly violating the rules of the road, and going far beyond what a reasonable driver deems prudent.

Listen to the HB363 testimony: Go to http://mgahouse.maryland.gov/House/Catalog/catalogs/default.aspx
and click on Judiciary in the left navigation bar and scroll down to 2/23/11 either one of the versions – Since it was a 4 hour session — you can move the bar forward to 1 hour and 58 minutes which is when Delegate Simmons begins the presentation.

Manslaughter by Vehicle or Vessel – Criminal Negligence provides a misdemeanor option for those who cause fatalities by driving in a criminally negligent manner- when sober. The bill follows the Modern Penal Code used in the majority of other states. It is a misdemeanor —upon conviction, the person would be subject to imprisonment not to exceed 3 years and/or a fine not to exceed $5000.
There is a big loophole in Maryland’s Law. Please call your Delegate today!

General audiences reading this will clearly get the message that bicycling is very dangerous (which is of course, sometimes true); they are likely to draw the conclusion, subconcously or otherwise, that motoring is safe (which is of course not true).
There are far more motorists hurt/killed in traffic collisions than bicyclists — mainly because there are far more motorists. (We would all like to know the relative RATE but as you know that’s somewhat elusive.)

To quantify it, last year (2010) in AZ there were 106,000 MV collisions in AZ (of all types, MV’s, peds, bikes…)
There were 50,110 injuries + 762 fatalities (= 50,872 killed or injured) — of which 1,588 (1,569+19; 3%) were bicyclists and 1333 (1178+155; something under 3%) were peds — the rest were, of course, motorists (the remaining 94%).

So i think you ought to always point out, either directly or indirectly, that 1) driving is dangerous to everyone involved, not the least of which is motorists, and 2) drivers should want to driver more safely not to help bicyclists or peds, but simply to increase motorist’s safety (including themselves).

You probably can’t go wrong appealing to people’s self-interest.

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On a related topic; this (the 94%) is why i don’t follow the logic of a “vulnerable user” law. The large majority of injuries don’t involve a vulnerable user.

And you covered some of the reasons in your “Final 2010 U.S. Motor Vehicle Traffic Fatalities released” blog: “Speed matters and need to redefine mobility – ‘Everyone should be familiar with the chart that shows that a pedestrian hit by a car traveling at 20 miles per hour (mph) percent survivability rate. That same collision with a car going twice as fast, 40 mph, will lower the survivability likelihood to 15 percent’” (Laplante and McCann, Complete Streets: We Can Get There from Here, ITE journal, May 2008).”

I would like to see increased penalties for drivers who negligently maim and kill — but i don’t see why these penalties should only apply to when bicyclists or peds are killed.

In any event, I wonder about the effectiveness —
In the 6 or so years that the law has been on the book in OR, there have been several hundred ped + cyclist fatalities and (rule of thumb) several thousand serious injuries — certainly the motorist was at fault in some fraction of these cases, perhaps half. What has become of the law in these thousands of cases?

There was some interesting discussion of OR Vulnerable User’s law in this nextcity.org article; keep in mind this law has now been on the books for 8 years, and is rarely charged. I mean, a small number is one thing but it appears it is virtually zero cases per year…

Even when the law is on the cyclist’s side, enforcement can be tricky. Take Oregon, for instance, where a large and politically empowered cycling community led to the 2007 passage of the state’s Vulnerable User Law. Modeled after a law in the Netherlands, the regulation recognizes that the person behind the wheel is encased in several tons of metal, and thereby protected in a way that others out and about are not. The so-called “vulnerable user group” includes pedestrians, cyclists, highway workers and people in wheelchairs or motorized scooters. According to the League of American Bicyclists, Oregon is one of seven states — Hawaii, Utah, Connecticut, Washington, Delaware and Vermont are the others — with such a law.

Passing the precedent-setting law was a huge win for safe-street advocates. There have been other important courtroom victories, too, though it hasn’t fully solved the problem of uneven enforcement.

“The DMV and the department of transportation feel like they don’t have the money to track the numbers of drivers criminally charged with this violation,” says Ray Thomas, a bike law attorney in Portland. “Our state barely has enough money to educate the police about the improvements in the law that we passed through the legislature.”